Libya Killings and Speech Labels: The First Amendment According to Google

by Peter Spiro

At risk of dipping back into this touchy subject, there’s this interesting development as reported in today’s NY Times: Google has blocked the film that has provoked embassy (and now KFC) attacks from youTube sites in Libya and Egypt:

Google said it decided to block the video in response to violence that killed four American diplomatic personnel in Libya. The company said its decision was unusual, made because of the exceptional circumstances. Its policy is to remove content only if it is hate speech, violating its terms of service, or if it is responding to valid court orders or government requests. And it said it had determined that under its own guidelines, the video was not hate speech.

Maybe the hate speech/offensive speech distinction can be elided by the smart folks in Google’s foreign ministry. If material is literally setting off global firestorms through its dissemination online, Google will strategically pull the plug. (You can bet, of course, that Google is consulting with official foreign ministries on this, in the way that diplomats do.)

Do people who have a problem with the hate speech ban have a problem with Google’s action here? Seems to me hard to argue with, at least as deployed in this targeted way, if it stops a lot of senseless violence and dangerous instability. Private actors, of course, aren’t subject to the First Amendment (or parallel international law constraints). Of course there is another side of the coin, as when internet companies more clearly do the bidding of anti-democratic authorities.

14 Responses

Ok, now, Mr. Spiro, prove to us the counterfactual. Your ideological conjecture is unscientific and inane. Google is bowing to political pressure, and murderers will still find excuses to murder.

Just as you will still find excuses to peddle your illiberal agenda even as the weight of U.S. and international law, and norms of morality, are all stacked against you.

9.14.2012
at 11:36 am EST Guest

Well, I guess you answered the question of whether people who have a problem with hate speech bans have a problem with this. If enough other people do, that will move Google, in the same way it moved it with respect to China. But somehow I doubt any outrage will be as intense.

Professor Spiro, as you pointed out, Google is a private actor, not an arm of the government. That to me is all I really need to distinguish the cases. If my local newspaper declines to publish a controversial or inflammatory editorial of mine, that’s one thing; if I try to say the same thing at my local town council meeting and am denied the opportunity to speak, that’s another.

Likewise, I can disagree with the policies of foreign governments like China to demand censorship of the Internet, but I don’t really blame private companies who choose to do business there for complying with the local law. We expect Chinese companies to comply with things like our local environmental standards, after all. (I would also be interested to know if it was really exclusively Google’s decision to pull the plug on the video, or if it received any sort of “government request” from Libya or Egypt.)

9.14.2012
at 12:58 pm EST Peter Orlowicz

Peter, If Google pulls the plug, as a practical matter that’s way more important than any governmental regulation (that’s not to dismiss your point, only to highlight some empirics). I doubt it was Libya or Egypt going to Google – much more likely the State Department or White House.

The pictures of the incident at Abu Ghraib doubtlessly cost many lives after their release. They were a recruitment tool for violence, as they made many people very angry.

Would you support the blocking of such photos, or other information with a potential impact to enrage others, on similar grounds?

9.14.2012
at 1:52 pm EST Liz

Liz, the big difference between Abu Ghraib and this: in that case the material exposed government wrongdoing (so there were accountability values at stake), whereas in this one the material (the film) doesn’t by itself have any such value.

It seems from all reports that the attacks on US and other embassies around the world are not in any way spontaneous demonstrations prompted by outrage against a video that no one ever heard of until 15 minutes ago. Did 400 soldiers armed with machine guns and rocket launchers just happen to show up at the Benghazi consulate at the very moment that the 40 Libyan “security guards” decided to take the day off? Only naifs buy this “outrage” nonsense.

9.14.2012
at 8:19 pm EST Douglas Levene

Two points – First, Google can do what it wants. The bad part here is the White House pressure to take the video down – I am embarrassed for my country. Second, re Abu Ghraib – the individuals involved in that incident were already being prosecuted by the military when various media outlets such as The NY Times thought publishing the pictures would help their policy agenda vs the Bush Administration. They didn’t care if it incited additional violence against Americans.
This entire discussion is insane. Peter Spiro and the Islamists are in agreement that the video should be banned. I guess other religions need to start reacting more violently to perceived insults in order to get what offends them banned. What a lesson!

9.14.2012
at 9:51 pm EST Mark

Google gets it right. Here is their specific action and thank goodness they pushed back against the White House.
“We work hard to create a community everyone can enjoy and which also enables people to express different opinions,” a YouTube spokeswoman said in a statement. “This can be a challenge because what’s OK in one country can be offensive elsewhere. This video — which is widely available on the Web — is clearly within our guidelines and so will stay on YouTube.”
“However, we’ve restricted access to it in countries where it is illegal such as India and Indonesia, as well as in Libya and Egypt given the very sensitive situations in these two countries,” the spokeswoman said.

Let us assume the US government was the one contacting Google. Is that so bad? Given that employees of the State Department have been killed and that there are all kinds of Americans living and working overseas in all of the countries where riots have started. If you had a kid in the Peace Corps in Kuwait, wouldn’t you call the Peace Corps to see if your son or daughter was safe and can we get them out. How about a son or daughter who was a Marine at the Embassy in Indonesia? Would you be willing to sit by and say “First Amendment” or “That is the freedom that they are their defending.” or something like that. As a dad, I would be all over the State Department or Defense asking what they were doing to protect my kid. If this was a private employer, like KFC, and there was an American manager who had been running that one which burned down, the employees would expect that the company would do something to protect their staff in the line of fire wouldn’t they?

Those who make the old Constitution based public-private distinction in terms of US government reaction I think are again falling into old traces. The government is the employer of these people. If someone dies or is injured, there will be lawsuits against the government by the families of these people for wrongful death or the equivalent for failures of the government as an employer.

I note we get back to Abu Ghraib – another ripple from that criminal policy done by the highest ups of the government. Without the photos, we would have been lied to about the entire “enhanced interrogation” program that was and remains official lawlessness. The US government doing a CYA for its official lawlessness as opposed to the US government raising concerns with Google about the video are just two aspects.

Imagine the US government used the exact same language in speaking about why it tried to block the Abu Ghraib photos and why it went to Google. The uncovering of official lawlessness to help Americans comprehend their government’s actions in their names seems something of importance that would merit not listening to the government. The taking down of a video that is clearly inflammatory to wide swaths of the world and causes risks for Americans living in those wide swaths would seem eminently reasonable for the government to seek to do and for Google to acquiesce in doing.

The filmmaker has a first amendment right to make the film, but has no first amendment right to have it distributed. At most, the filmmaker has a contractual right based on the Google/Youtube’s Terms of Service that Google appears to be violating. The filmmaker can sue for breach of that contract and seek damages or specific performance. Assuming the filmmaker wants the film up, the Court would assess the public interest as part of the effort to examine whether to grant the specific performance. In that setting, I can well imagine a court declining to give that contractual remedy.

This is now contract – not First Amendment. Contract created the internet.

Best,
Ben

9.15.2012
at 5:54 am EST Benjamin Davis

Mr Davis, what about articles regarding Koran burnings/Koran desecration? In such cases in the past, it isn’t the action that led to violence, but the report of the action (or report of intention of the action) that enraged people and caused mass violence when they heard it.

Like the proverbial tree that falls in the forest with no one to hear it, if such information were not relayed second-hand by the media no one would know. No government conspiracy cover-up, just a measure to curb people hearing something in the press that might enrage and offend them. I see no appreciable difference in the rationale, and a lot of practical limitations with this type of policy.

I am a military brat, and the wife of a commander. Many, many people I’m very close to have been, and are, stationed in violent areas around the globe.

9.15.2012
at 8:33 am EST Liz

I agree with Ben’s point that the filmmaker has no constitutional right to have its film distributed. In this case Google is free to make its decision as it has.
As to the White House’s attempted interference, let’s be clear what this is about. It is not about some abstract issue. This is about Islam. There is no other religion about which we would be having this discussion. Islam already has “most favored religion status” in the West when it comes to suppression of speech. We already self-censor ourselves to an enormous degree. As the Director General of the BBC noted earlier this year in discussing why it treated Christianity differently than Islam “Without question, ‘I complain in the strongest possible terms’, is different from, ‘I complain in the strongest possible terms and I am loading my AK47 as I write’,” he said. “This definitely raises the stakes.” To further twist our society in knots to appease the worst elements within Islamic culture is demeaning and destructive to our culture. It is clear that this film is just a pretext. With our free society and the ability of millions to express themselves via various routes they will always find some excuse unless we adopt a degree of speech repression unprecedented in our history. And they will always find apologists in the West to point the finger at ourselves.

9.15.2012
at 9:15 am EST Mark

“If Google pulls the plug, as a practical matter that’s way more important than any governmental regulation (that’s not to dismiss your point, only to highlight some empirics).”

I don’t agree with you on this point. Google is not the Internet, and the authors of the movie have plenty of other services to choose from. Bottom line, without Google they can easily continue to distribute excerpts of the movie online. I’m willing to bet that some Jihadist websites would host it for free. Other search engines will keep linking to it (Baidu comes to mind).

I would further point out that the US government is free to condemn the movie as inflammatory and voice its strong dissaproval. It is even free to ask Google to stop distributing it and linking to it. It is not free however, to ban the movie or jail its authors. Nor should there be any apology for our free speech values.

9.17.2012
at 7:02 am EST Chris

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